FOX News: East Coast fishermen file appeal over cost of government-required ‘at-sea monitors’

East Coast fishermen file appeal over cost of government-required ‘at-sea monitors’

 

By Cristina Corbin | Published December 09, 2016

SEABROOK, N.H. – David Goethel built his life off the profits of cod, trolling the waters of New England for 30 years netting the region’s once-abundant signature fish.

“My slice of the American Dream was paid for from fishing,” Goethel said from behind the wheel of his 44-foot fishing trawler on a windy Friday afternoon in December. “Cape Cod house, two cars, four college educations – it all came out of the fish hole in this boat.”

But a controversial federal mandate is threatening to put him out of business, he claims. Read More

If the Government Wants to Monitor Fishermen, the Government Should Pay

CoA Institute files opening brief in appeal of decision to force costs of at-sea monitors on struggling fishermen

Washington D.C. – Cause of Action Institute (CoA Institute) has filed its opening brief in an appeal of the district court’s decision that fishermen should be forced to pay for their own at-sea monitors. CoA Institute is representing New Hampshire fisherman David Goethel and a group of Northeast fishermen in the case against the U.S. Department of Commerce.

In July, the U.S. District Court for the District of New Hampshire dismissed the lawsuit, ruling that fishermen must pay out-of-pocket for the cost of those monitors. Cause of Action Institute is appealing the ruling. The opening brief, filed in the First Circuit Court of Appeals, states:

“The New England and Mid-Atlantic fishing industry is older than the Nation itself.  Today it creates thousands of jobs in countless fishing communities. The industry’s regulators, however, have embarked on a project that threatens its imminent destruction.  They have done so without statutory authority, defying the most elementary limits on federal agency power.  This Court should intervene to protect fishermen from agencies run amok.”

Current government regulations compel fishermen to carry “at-sea monitors” who live with the fishermen at sea, observe their activities, check their compliance with federal regulations, and file reports upon their return to dock.  Fishermen have accepted the presence of monitors for years, and the government has historically paid for them with money appropriated by Congress.

In early 2016, however, the Government claimed to have run out of money.  Its response was to enforce a new requirement — now, the fishermen must pay for the monitors themselves, at an estimated cost of more than $700 per trip.  Most fishermen cannot afford to do so, and will be forced to abandon their livelihoods.

If the Government wants third-party monitors to police fishing activity, the Government must also take responsibility for paying for them. The district court disagreed, holding that the Government’s power to regulate the fishing industry and place monitors includes the much broader power to extract money from regulated parties when congressional appropriations run short.

The brief states:

“Such reasoning represents an unprecedented expansion of agencies’ implied powers, with implications stretching far beyond the agencies involved in this case. Contrary to the district court’s reasoning, the bedrock of administrative law is that federal agencies are limited to congressionally-delegated powers and congressionally-appropriated funds.  If they lack statutory authority or appropriated funds, they have no power to act.  They may not coerce their regulated industries to provide the funding that Congress has declined to grant.  This Court should reaffirm that principle and reverse the district court.”

For more information about the case, visit our website.

Court Rules Against Local Fishermen, Upholds Job-Killing Government Mandate

The U.S. District Court for the District of New Hampshire held that the requirement is “an expected expense of doing business” for New England fishermen

 

WASHINGTON, D.C. – Today, the United States District Court for the District of New Hampshire dismissed the lawsuit filed by Plaintiffs David Goethel and Northeast Fishery Sector 13 against the U.S. Department of Commerce.

In December 2015, the Department of Commerce ordered that fishermen who fish for cod, flounder and certain other fish in the Northeast United States not only must carry National Oceanic and Atmospheric Administration (“NOAA”) enforcement contractors known as “at-sea monitors” on their vessels during fishing trips, but must pay out-of-pocket for the cost of those monitors.  This “industry funding” requirement would devastate the Northeast fishing industry, at the price of many jobs and livelihoods.  The District Court’s order allows that requirement to remain in place.

The Court found that the fishermen’s suit was untimely and that the requirement that monitors be funded by the fishermen was authorized by law.

“I am very disappointed by this decision,” said Goethel.  “I’ve made a living fishing in New England for more than 30 years, but I can’t afford to fish if I have to pay for at-sea monitors.  I’m grateful to Cause of Action Institute for joining the fight, and I hope that the rule of law will win in the end.”

“The fishermen in my sector can’t sustain this industry funding requirement,” said Northeast Fishery Sector 13 Manager John Haran. “They’ll have to try other fisheries, if they can keep fishing at all.”

“While we respect the District Court and its decision, it appears that decision is contrary to the law and facts,” said Alfred J. Lechner, Jr., President and CEO of Cause of Action Institute and a former federal judge.  “In the end, the federal government is overextending its regulatory power and is destroying an industry. We intend to study the decision and consider further action.”

The District Court’s full opinion can be found here. For additional information about the case, visit the Cause of Action Institute website.

 

FOX News: East Coast fishermen spar with federal government over cost of at-sea monitors

fox_news

071416 FOX News

Media Call: Cause of Action Discusses New Lawsuit Against Department of Commerce

Cause of Action media call to discuss our new lawsuit against the Department of Commerce regarding a new regulation that will be devastating to the East Coast ground-fishing industry.

East Coast Fishermen File Lawsuit Over At-Sea Monitoring Mandate

 CoA Logo

East Coast Fishermen File Lawsuit Over At-Sea Monitoring Mandate

Complaint Challenges Federal Regulation that the Government Admits Would Hurt Fishermen Throughout the East Coast

FOR IMMEDIATE RELEASE: December 10, 2015

MEDIA CONTACT: Geoff Holtzman l geoff.holtzman@causeofaction.org l 703-405-3511

WASHINGTON – Today, Cause of Action is announcing that its clients, David Goethel, owner and operator of F/V Ellen Diane, a 44-foot fishing trawler based in Hampton, N.H., and Northeast Fishery Sector 13, a nonprofit entity representing fishermen from Massachusetts to North Carolina, are suing the U.S. Department of Commerce over a program that would devastate the fishing industry along much of the eastern seaboard.

The complaint challenges the legality of a federal mandate requiring those who fish for cod, flounder and other ‘ground fish’ in the Northeast United States to not only carry National Oceanic and Atmospheric Administration (“NOAA”) enforcement contractors known as “at-sea monitors” on their vessels during fishing trips, but to soon begin paying out-of-pocket for the cost of these authorities. In addition to the complaint, the Plaintiffs have filed a motion for a preliminary injunction that would protect fishermen from having to bear the costs of the at-sea monitors.

“Fishing is my passion and its how I’ve made a living, but right now, I’m extremely fearful that I won’t be able to do what I love and provide for my family if I’m forced to pay out of pocket for at-sea monitors,” said Goethel. “I’m doing this not only to protect myself, but to stand up for others out there like me whose livelihoods are in serious jeopardy. I’m grateful to Cause of Action for giving my industry a voice and helping us fight to preserve our way of life.”

“The fishermen in my sector are hard-working and compassionate folks who would give the shirts off of their backs to help a fellow fisherman in need,” said Northeast Fishery Sector 13 Manager John Haran. “Our sector will be effectively shut down if these fishermen are forced to pay, themselves, for the cost of at-sea monitors.”

“By the federal government’s own estimate, this unlawful regulation will be the death knell for much of what remains of a once-thriving ground fish industry that has been decimated by burdensome federal overreach,” said Cause of Action Executive Director Dan Epstein. “Americans, particularly those who enjoy good, quality seafood, should be extremely concerned that an industry that has been around since before our nation was even founded is slowly going extinct, having been left out at sea by a federal government that seems more interested in caving to special interests than protecting jobs, families and consumers everywhere.”

CLICK HERE TO READ THE FULL COMPLAINT

CLICK HERE TO READ THE MOTION FOR PRELIMINARY INJUNCTION

CLICK HERE TO LEARN MORE ABOUT THE CASE

 

BACKGROUND: 

“Catch Shares” are a fishery management tool that dedicates a secure share of quota allowing fishermen or other entities to harvest a fixed amount of fish. Since 2010, the National Oceanic and Atmospheric Administration has coerced New England groundfishermen like Mr. Goethel into joining a form of catch shares known as “sectors,” where they share quota, and are forced to invite federally-contracted monitors onto their boats anytime they set out to sea.

Although the agency has claimed in Federal court that “Sector membership is voluntary; permit holders need not join a sector in order to be able to fish,” the reality is they have designed the alternative, known as the “common pool” to be so prohibitive, that fisherman are forced to join a sector to remain economically viable in the groundfish industry.

Catch Shares were promoted heavily by environmental groups and NOAA during the first years of the Obama Administration. Former NOAA Administrator Jane Lubchenco, asserted that “fisheries managed with catch share programs perform better than fisheries managed with traditional tools.” She promised that catch shares are “the best way for many fisheries to both meet [federal mandates] and have healthy, profitable fisheries that are sustainable.” However, the promises made by Federal appointees and environmentalists have not been fulfilled in New England.

Unfortunately, it’s about to get much worse for these struggling fishermen, who are already policed by the U.S. Coast Guard, the National Oceanic Atmospheric Administration (NOAA) and agents from the U.S. Fish and Wildlife Service. Some time in “early 2016,”, NOAA will begin forcing them to pay the costs associated with having at-sea monitors watch over their shoulders.

This unlawful mandate will cost Mr. Goethel and the groundfishermen of Sector 13 hundreds of dollars per day at sea, which, for many of them, is the difference between sinking and staying afloat. In fact, according to a study produced by NOAA, nearly 60% of the industry will be rendered unprofitable if it is required to pay out of pocket for these monitors.

NOAA has implemented the industry funding requirement for monitoring despite the fact that:

  • The Secretary of Commerce declared the groundfish fishery an economic disaster in 2012.
  • The industry continues to struggle with the precipitous decline in groundfish profitability, as evidenced by a four-year low in groundfish revenue of $55.2 million for Fishing Year 2013 — a 33.6 percent decline from Fishing Year 2010.
  • Congress has directed NOAA to use its appropriated funding to cover the cost of these at-sea monitors, which NOAA has refused to properly utilize and allocate in accordance with congressional intent.
  • NOAA is specifically required by statute to implement regulations that allow fishing communities sustainable prosperity and “minimize adverse economic impacts on such communities.”
  • As mentioned above, NOAA itself produced a study indicating that upwards of 60 percent of the groundfish industry could be rendered unprofitable if it is required to pay for at-sea monitors.

About David Goethel:

Mr. Goethel, who has been fishing for over 30 years, holds a B.S. in Biology from Boston University, and worked at the New England Aquarium as a research biologist before choosing to go back out to sea as a fisherman. Mr. Goethel served two terms on the New England Fishery Management Council, and has been an advisor to seven state and federal fishery management boards, including the Atlantic State Marine Fisheries Commission and the governor’s commission on marine biology. Mr. Goethel has been awarded the National Fisherman’s Highliners Award for his active involvement in cooperative efforts to research and manage marine fisheries resources, and is a member of the Yankee Fishermen’s Cooperative.

About Northeast Fishery Sector 13:

Northeast Fishery Sector 13 is a nonprofit organization comprised of 20 active groundfishermen who are permitted in Connecticut, Massachusetts, New York, North Carolina, Rhode Island and Virginia. The number of groundfishing activity within the sector has declined sharply in the past five years due to poor science and overregulation, which has resulted in quota cuts. Click here for more information about the sector.

About Cause of Action:

Cause of Action is a government accountability organization committed to ensuring that decisions made by federal agencies are open, honest, and fair.

To speak to a legal expert from Cause of Action about the case, please contact Geoff Holtzman at Geoff.holtzman@causeofaction.org or call 703-405-3511

###